My Name Is Nobody: Corporate Identity and Accountability in Ocean Governance

[Gustavo Leite Neves da Luz is a Postdoctoral Fellow at Dalhousie University. He holds a PhD in International Law from the University of Hamburg.]

“Nobody—that’s my name,” Odysseus tells the Cyclops Polyphemus in Book IX of the Odyssey. The answer does not render him invisible. Polyphemus knows that an intruder stands before him and later knows that he has been blinded. Yet, when Polyphemus calls for assistance and says that “Nobody” is attacking him, the other Cyclopes infer that there is no external assailant against whom they should act. The name is intelligible, but it disables attribution even though the harm is known.

The episode is usually remembered as a triumph of intelligence over brute force. It is also a story about the institutional effects of naming. Odysseus does not disappear. He supplies an identity whose formal meaning obstructs the passage from knowledge of an injury to accountability for it.

Corporate identity in ocean governance presents a legally different, but structurally related, problem. The contractor is named, incorporated, sponsored, and registered. It is not anonymous. Nevertheless, the legal person visible to an international regime may reveal less than the regime assumes about who controls the enterprise, provides its financial and technical capacity, benefits from its operations, and will ultimately answer for environmental harm. Therefore, the issue is not merely who the contractor is, but whether the legal identity selected by the regime represents the wider enterprise on which regulatory capacity and accountability depend.

Against this background, the central question is: should the regime look beyond the contractor’s separate legal personality when its qualification or continued operation materially depends on other entities, and, if so, through which regulatory mechanisms? This post argues that regulatory identity should be aligned with regulatory dependence: where qualification or continued operation materially depends on another entity, the regime should preserve visibility and defined accountability across that relationship.

The Contractor Seen by Ocean Law

The problem is especially visible in deep seabed mining. Under the United Nations Convention on the Law of the Sea (UNCLOS), the Area comprises the seabed, ocean floor, and subsoil beyond national jurisdiction, and its mineral resources form part of the common heritage of mankind. The International Seabed Authority (ISA) organises and controls activities in the Area on behalf of mankind as a whole. Private participation i possible, but it is not detached from States. Under Article 153(2)(b) and Annex III, Article 4 of UNCLOS, a juridical person must possess the nationality of a State Party, or be effectively controlled by a State Party or its nationals, and must be sponsored by the relevant State or States.

The Seabed Disputes Chamber described sponsorship as a “key element” of this system in its 2011 Advisory Opinion. Its purpose is to connect entities constituted under domestic law to obligations created by an international legal order that formally binds States. That connection is constructed through nationality, effective control, and the decision to sponsor. It also serves a common-interest function: the sponsoring State assists the ISA in securing compliance with a regime governing resources that belong neither to the sponsoring State nor to the contractor.

The existing regulatory framework by the ISA requires more than a company name. An applicant must provide information concerning its nationality or effective control, principal place of business or domicile, place of registration, financial and technical capability, and sponsoring State. Where the applicant is a subsidiary, the Regulations require the financial statements of the other entity and a certified statement that the applicant will have the financial resources necessary to carry out the plan of work.

The regime therefore does not confront a nameless actor. It constructs a regulatory identity through selected indispensable requirements. They do not, however, necessarily describe the full economic organisation of the undertaking. A contractor may possess an independent legal personality while depending on other entities for capital, technology, guarantees, management, or access to markets.

When a Name Reveals Too Little

The deep seabed mining regime places the contractor at the centre of private responsibility. Annex III, Article 22 of UNCLOS provides that the contractor bears responsibility or liability for damage arising from wrongful acts in the conduct of its operations. The sponsoring State occupies a different position: its liability arises from its own failure to comply with its obligations, including its due diligence obligation to ensure compliance, rather than automatically from damage caused by the contractor.

That distinction is legally coherent, but it exposes a liability gap that the Chamber identified rather than resolved. In paragraphs 203–205, the Chamber contemplated a contractor unable to meet its liability in full while the sponsoring State was not liable because the conditions under Article 139(2) were not satisfied; paragraph 209 returned to the possibility of a trust fund for uncovered damage. Fifteen years later, the Further Revised Consolidated Text (Revision 3) still places the Environmental Compensation Fund in bracketed draft regulations 54–56. Naming a legally responsible contractor therefore does not itself guarantee effective reparation.

The contemporary example is The Metals Company (TMC). Nauru Ocean Resources Inc. (NORI), incorporated in Nauru and sponsored by Nauru under its ISA exploration contract, is wholly owned by TMC. In 2021, Nauru invoked the two-year rule in anticipation of an application by NORI for approval of a plan of work for exploitation. Another wholly owned subsidiary, The Metals Company USA LLC (TMC USA), submitted applications under the US Deep Seabed Hard Mineral Resources Act for exploration licences and a commercial recovery permit in the Clarion-Clipperton Zone. The same corporate group thus pursued parallel regulatory pathways through legally distinct subsidiaries.

This does not make NORI and TMC USA the same juridical person or automatically attribute the conduct of one to the other. The narrower concern arises where relationships within a corporate group are material to a contractor’s qualification or continuing capacity but legally remote when responsibility is allocated. A contractor may rely on another entity to demonstrate sufficient financial resources or operational capacity without bringing that entity within the structure through which environmental liability is allocated. The regime may therefore look beyond the contractor when assessing viability and narrow again to the separate legal person when private liability is engaged.

Existing rules address parts of this problem. Regulation 29 requires sponsorship to continue throughout an exploration contract, while standard clause 22 subjects transfers of contractual rights and obligations to ISA consent and requires the transferee to assume the contractor’s obligations. But a transfer of contractual rights is not the same as a change in ownership or indirect control. The contractor may remain the same juridical person while the enterprise that directs, finances, or benefits from it changes materially. Formal continuity can therefore coexist with a transformation of the regulatory relationship.

From Legal Identity to Regulatory Connection

International law does not treat corporate personality as inviolable. In Barcelona Traction, the International Court of Justice recognised that disregarding the legal entity may be justified in particular circumstances or for particular purposes, including where legal personality is misused, third parties require protection, or legal requirements are evaded. That possibility is relevant here, but it is not a ready-made basis for treating a corporate group as a single person under Part XI. Veil piercing remains an exceptional corrective mechanism rather than a general rule of parent-company liability.

Maria Esther Salamanca-Aguado has proposed a more assertive route in this specific context. Drawing on Sumal and the EU competition-law concept of the undertaking, she argues that the ISA may look beyond NORI’s formal separateness and consider the economic unity of the TMC group when assessing NORI’s request for an extension of its exploration contract. She presents Sumal as a functional analogy rather than as a transposition of EU competition law into the law of the sea. Her argument is closely related to the concern developed here, but regulatory dependence performs a different function. Economic unity asks when corporate separateness may cease to be dispositive for a particular legal consequence. Regulatory dependence asks which relationships the deep seabed mining regime should identify ex ante and make legally relevant without first treating the corporate group as a single legal person. Its added value is therefore institutional: it converts control and dependence into disclosure, reassessment, financial backing, and defined liability commitments before environmental harm tests the adequacy of the liability regime.

Revision 3 already places most of the relevant regulatory tools on the table. The contribution, therefore, lies not in repeating them but in choosing among the unresolved alternatives and explaining how they should operate together. Regulatory dependence points towards four choices.

First, the Beneficial Ownership Registry should be public. Core information identifying the contractor’s beneficial owners, the chain through which control is exercised, and material changes in that structure should be available through the Seabed Mining Register, as Revision 3 currently contemplates. Protection may remain available for specifically identified commercially sensitive supporting information, but the identity of those who ultimately own or control an entity authorised to exploit the common heritage should not itself be treated as confidential.

Second, “Managing Company” should be defined functionally rather than by corporate title. It should mean the entity, other than the contractor itself, that directly or indirectly exercises ultimate decisive influence over the contractor’s strategic, operational, or financial decisions and has the practical capacity to procure compliance with the Exploitation Contract. Relevant indicators may include voting rights, powers to appoint or remove directors, contractual rights, financing arrangements, and equivalent means through which the contractor’s conduct can actually be directed. The relevant entity need not be the immediate parent. Nor should this concept replace the distinct UNCLOS inquiry into effective control for purposes of nationality and sponsorship. Its purpose is narrower: to identify the entity within the corporate group whose actual position justifies attaching defined regulatory obligations to it.

Third, the Parent Company Liability Statement should be retained, and joint and several liability should not be replaced by financial security alone. The two devices perform different functions. A Parent Company Liability Statement determines who is legally answerable alongside the contractor for the specified debts and liabilities; a guarantee or insurance mechanism improves the availability of resources from which particular obligations or losses may be met. The contractor should remain the principal bearer of its obligations. The identified Managing Company should assume joint and several liability, through the Parent Company Liability Statement, for the specified debts and liabilities arising from the Exploitation Contract and its performance. Insurance and ring-fenced financial security should then provide an additional layer of recoverability. Crucially, this would be a liability voluntarily and regulatorily attached through the contractual framework, not an assertion that UNCLOS automatically makes every parent company liable for the conduct of its subsidiary.

Fourth, a change of control should trigger reassessment before the new corporate structure becomes operational for regulatory purposes. The contractor should notify both the ISA and the sponsoring State before the change, and exploitation should not continue while sponsorship, financial and operational capability, and the identity and capacity of the Managing Company remain unresolved. Where the entity capable of procuring compliance changes, a replacement Parent Company Liability Statement should take effect with the change of control. Formal continuity of the contractor should not preserve an authorisation whose underlying financial or managerial basis has materially changed.

These choices do not abolish corporate personality. They make the regulatory consequences of corporate organisation explicit in advance. Veil piercing would remain an exceptional corrective mechanism; economic unity may provide a useful analytical lens in a particular dispute. Regulatory dependence is a narrower proposition. Where the regime relies on relationships beyond the contractor to establish or maintain its capacity, those relationships should remain visible and carry defined consequences before accountability is tested by environmental harm.

No One Is Accountable

Odysseus eventually reveals his true name, but only after the immediate opportunity for collective intervention has passed. A regime governing the common heritage of mankind should not wait for environmental harm before discovering that the contractor before it had a name, while the enterprise behind that name had remained only partially within view.

Photo attribution: “Odysseus and Polyphemus” by Arnold Böcklin (1896). Museum of Fine Arts, Boston collection.